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Expanding public interest standing

Legal Report: Litigation
|Written By Shannon Kari
Expanding public interest standing
Illustration: Huan Tran

Who can intervene in the administrative context will be tested at the Supreme Court.

The spectre of the “curious busybody” is going to be before the Supreme Court of Canada again this fall in an appeal stemming from a complaint about an airline’s policies in dealing with passengers who are obese.

The court will be asked to clarify the law of public interest standing in an administrative context and more specifically whether individuals must be directly impacted by a practice or policy to be permitted to have their complaint heard by the oversight agency.

An added twist to Delta Air Lines Inc. v. Gábor Lukács is that the respondent is a self-represented litigant. The Halifax-based mathematician has filed more than two-dozen complaints in recent years with the Canadian Transportation Agency as a consumer advocate for airline passengers. In many cases, his complaints have been successful and a whole body of case law in this area has developed, based on decisions by the agency and the Federal Court. The Supreme Court has appointed Benjamin Zarnett, a senior litigation partner at Goodmans LLP, as amicus curiae to assist with the Delta Air Lines case.

Beyond the unusual circumstances of how the initial complaint made its way to the Supreme Court, the case will be of interest to administrative tribunals in general, says Justin Safayeni, a lawyer at Stockwoods LLP in Toronto.

“I think the Supreme Court has dealt with standing in the context of court cases. The question is how what has been developed for the courts can be applied to an administrative agency,” says Safayeni, whose practice involves administrative and constitutional law litigation.

A sign that there may be broader implications to what will be decided by the court is that a number of groups are seeking to intervene. The Attorney General of Ontario, the Council of Canadians with Disabilities, the Canadian Transportation Agency and the International Air Transport Association, an industry trade organization, have all filed intervener applications.

The case originated in 2014 when Lukács filed a complaint with the agency alleging that some policies of Delta Air Lines were discriminatory toward obese passengers. One of the stated mandates of the agency is “consumer protection” for air travellers. If a complaint is not resolved, it is adjudicated by a panel made up of one or more of its five members — who are federally appointed and all of whom currently have career backgrounds in government or the transportation industry.

Lukács does not fit that physical description personally, but he maintained he has a public interest right to file the complaint and relied on provisions within the Canadian Transportation Act.

One of the sections gives the agency the discretion to take action with respect to an airline’s practices upon receiving a complaint from “any person” if the complaint is upheld. As well, a section in the federal Air Transportation Regulations states that any international airline with services in Canada may not have practices that discriminate against any passenger.

A two-member panel of the agency made of then-chairman Geoffrey Hare and vice chairman Sam Barone found that Lukács did not have standing. The panel concluded that Lukács did not meet the standard set out by the Supreme Court in its 1986 decision in Finlay v. Canada, which had to do with the right to launch a court action against the federal government over transfer payments to the provinces.

In another decision released in early 2016, the agency also ruled that Lukács did not have standing in a complaint he filed against Porter Airlines over information it posted on its website related to passenger compensation for baggage delays. The phrase “any person” in the Act cannot mean “universal standing,” the agency concluded, citing a 2012 decision by the Ontario Court of Appeal in Galganov v. Russell. That case had to do with an applicant seeking judicial review to try to quash a bylaw related to commercial signs in a community east of Ottawa.

The Court of Appeal concluded that the right of “any person” to challenge a bylaw in court must meet the same threshold as the common law to be granted standing.

In its decision in the Delta case last fall, the Federal Court of Appeal did not agree that the bar to meet to be granted standing is the same for administrative tribunals as it is for the courts.

“Administrative bodies such as the Agency are not courts. They are part of the executive branch, not the judiciary,” wrote Justice Yves de Montigny, with Justices Wyman Webb and A.F.

Scott concurring. “Their mandates come in all shapes and sizes, and their role is different from that of a court of law. Often, such bodies are created to provide greater and more efficient access to justice through less formal procedures and specialized decision-makers that may not have legal training,” the court stated.

In seeking leave to appeal that decision, the airline suggested that the Federal Court of Appeal was “cavalierly interfering” with the agency’s ability to govern its own process. Delta warned of grave consequences for administrative tribunals if standing is widely interpreted and granted to people who are not directly affected.

“The [Federal] Court of Appeal’s holding strips away a fundamental gatekeeping tool from tribunals that administer complaint schemes and will encourage curious busybodies to launch complaints in which they do not have a demonstrated or sufficient interest,” stated Delta’s counsel, Carlos Martins, in the written leave submissions. If the decision is allowed to stand, it could lead to “opening floodgates to unnecessary proceedings,” wrote Martins, a partner at Bersenas Jacobsen Chouest Thomson Blackburn LLP in Toronto (Martins declined to comment as the appeal is still to be heard by the Supreme Court).

Ehsan Monfared, a Toronto lawyer who practises aviation law, suggests the Federal Court of Appeal did not show appropriate deference to the specialized expertise of the agency. “They are masters of their own domain,” says Monfared, an associate at Clark & Company. Delta is also arguing in its written submissions on appeal that one of the sections in the transportation act on which the Federal Court relied does not apply to international carriers. Monafred agrees and suggests that there may be a disincentive for foreign carriers to provide services in this country if “any person” can lodge a complaint.

The floodgates and busybody warnings by the airline are not surprising, says Janna Promislow, an administrative law professor at Thompson Rivers University in Kamloops, B.C.

“Busybodies, though, sometimes have a point,” she explains. “The discretion to hear a complaint or not is about what is being reviewed.” In the administrative law context, it may be more important to consider whether an agency is fulfilling its mandate rather than decide on the basis of who is filing the complaint, she says.

At the same time, says Promislow, “I can see Delta’s point. There are very good reasons to think the courts should defer strongly” to the decision of an administrative tribunal.

In terms of how the term “any person” should be interpreted, though, she does not think the Ontario Court of Appeal decision applies to deciding who can complain to an administrative agency. “Galganov is a case about standing to apply for judicial review and not standing before an administrative agency such as the Canadian Transportation Agency,” she says.

In support of its position, the airline is also relying on the Supreme Court decision in 2012 in 0. That decision granted standing to a public interest group and a former sex worker as part of a constitutional challenge to the country’s prostitution laws. Delta cited a section of the ruling stating that, in the allocation of scarce judicial resources, those “with a personal stake in the outcome” should get priority.

Lisa Kerr, a law professor at Queen’s University in Kingston, Ont. and one of the lawyers who acted for the public interest group in the prostitution challenge case, says it clearly met all the tests for standing before a court. The ruling itself, she says, “opened the door a little bit” for standing in the court context. But Kerr questions whether the same standard applies to standing before an administrative tribunal. “These are not courts adjudicating disputes. There are broad public responsibilities. I think the standing analysis has to be different,” she says.

The Ontario government, in its application to be an intervener in the Delta appeal, is also arguing that the law of public interest standing should not apply in the administrative context.

Even if the Federal Court of Appeal decision is upheld, there are still “gatekeeper” protections for the transportation agency, since it has the statutory discretion not to investigate a complaint, notes Promislow.

“Dr. Lukács could have ‘standing’ and the CTA could still not decide to go forward and hear the complaint,” she says, which the Federal Court of Appeal upheld in another complaint, this time over Expedia’s advertising practices.

In many cases, the issue may depend on the precise wording of a tribunal’s statute, says Safayeni. “There is no one-size-fits-all answer,” he suggests. “But they can’t all close the door because of standing.”

For his part, Lukács rejects the “busybody” label and pointed out in his written submissions that the firm acting for Delta has noted his successful track record in case commentaries on past decisions.

“From a moral point of view, it is troublesome if injustice to others is considered to be not your business,” says Lukács. “People who point out wrongful acts should be appreciated.”

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